Senate Agriculture Committee takes on EPA

Citing several controversial issues the EPA has taken on, farm-state legislators tore into the agency during a Sept. 23 Senate Agriculture Committee hearing. Lisa Jackson, EPA Administrator, attempted to parry the blunt, unflattering assessments but the legislators’ unhappiness only seemed to sharpen as the hearing progressed.

“The EPA has become public enemy number one for our farmers and ranchers,” said South Dakota Sen. John Thune, sounding a common theme. “Over the August break, I met with (a variety of farm groups) and each had issues specific to their industry. But they all had one common concern: the overreach of EPA regulations and the harm they’re doing.

“That comes in lots of areas – greenhouse gas regulations, threats to regulate dust, the ban of atrazine. It just seems ag producers are in the crosshairs of the EPA. In every case, (EPA) actions drive up costs and drive down profits of family farms and ranches.”

Pesticide permits

Thune’s complaints echoed those of Arkansas Sen. Blanche Lincoln, Chairman of the Senate Agriculture Committee, who said it makes no sense for pesticide application to be subject to both FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act) and the Clean Water Act (CWA). She was also displeased with the coming pesticide permits required by court ruling.

“CWA regulations are an unnecessary burden not only to applicators but to state regulatory authorities,” Lincoln told Jackson. “States like Arkansas are underfunded and struggle to keep up with existing laws and regulations and don’t need to spend time enforcing regulations that don’t improve the environment.

“EPA isn’t scheduled to finish the general permit until December 2010. I’ve heard it may be pushed back to January 2011. States are supposed to implement their permitting programs by April 2011. Frankly, I’m amazed your agency expects states to implement that general permit into law in a mere four months time. … We’re at the end of September and the possibility of (adhering to the proposed EPA) timeframe become more and more bleak.”

Like Lincoln, Georgia Sen. Saxby Chambliss, the committee’s ranking member, brought up the short amount of time states will have to implement the permitting process by April 2011.

“If the EPA will not change its position, I believe it needs to ask the court for more time – specifically for at least an additional year,” said Chambliss. “Would your agency be willing to do that?”

Jackson – who earlier said “although a general permit is probably the least intrusive regulatory method, I realize the preference of the ag community is ‘no permit’” -- wouldn’t commit.

“Right now, it’s important for folks to understand that EPA is working awfully hard with stakeholders to try and get compliance with the court’s judgment and decision,” said Jackson. “If, when we’re closer to (the December deadline) and decide we can’t get there, so be it.

“But we’ve been working very hard with the permitting authority in each state to implement a general permit that is workable and is a minimal additional burden to applicators, who already have to get permits for these pesticides in many, many states…

“The permit is out for comment and … we’re in a period where that work continues. We’ll finalize it as expeditiously as possible and continue what’s already begun: extensive outreach that will morph into training. The states will be the ones to implement that permit and we’re very well aware of that.”

Poultry/watersheds

Lincoln wasn’t through shaking the tree, pointing to the EPA’s involvement with watershed monitoring and farm visits. “Recently, I’ve heard an uptick of farmers voicing concerns about the EPA coming onto their farms to inspect poultry operations. … What efforts has the EPA made to reach out to farmers regarding compliance?”

When her agency employees drive onto a farm, it is Jackson’s “hope and intentionthat (farm owners) will have a clear understanding of what EPA’s compliance visits are meant to achieve. … There is no mystery around compliance visits. Compliance visits don’t assume nor presume nor do they necessarily result in any kind of enforcement action. They’re a visit intended to help farmers understand what their compliance obligations are under law.

“We’ve had successful models in several watersheds … where we were very clear we’d conduct these visits. We try not to surprise people and give them information ahead of time so they understand why we’re there. But we also acknowledge that working with state officials is a good way to get information out to the community.”

Lincoln: “I wouldn’t say you haven’t tried. The key here is the uncertainty … about what kind of fines, repercussions and consequences they can suffer from that visit. It’s enormous and I don’t hear (from farmers) that they’re getting information.

“I realize you may think of this as just a ‘visit’ but, to be honest, it isn’t pleasurable for (farmers) to go through not knowing what the consequences could be, particularly in these economic times. I’ve seen some outrageous fines and circumstances when you get a lot of people who normally sit behind a computer … coming out to the farm and seeing things for the first time. That’s enormously alarming to farmers.”

Methyl bromide

In July, EPA requested critical use nomination for methyl bromide for 2013. The agency also said it was time to consider when to stop making such requests.

“I have serious reservations about EPA’s preference to stop requesting critical use exemptions in 2015,” said Chambliss. “I’d like your commitment … to incorporate the House and Senate agriculture committees in the deliberations (on EPA’s discontinuing exemptions for) methyl bromide.”

Jackson: “Absolutely, sir. Within the confines of the law, we’re happy to include both committees. We’d value your expertise, information and input on those issues.”

Not good enough, said Chambliss. “I’d like you to be a little stronger on that, administrator Jackson. Y’all have been doing some things off the cuff that have been delineated here this afternoon that will have a hugely negative impact on U.S. agriculture. When it comes to methyl bromide and these exemptions, you’ll work with the House and Senate ag committees before any decisions are made?”

Jackson agreed.

Dusting off regulations

Holding a letter from a Midwest farm group claiming the EPA is engaged in “non-stop regulatory assault on agriculture,” Nebraska Sen. Mike Johanns (former Secretary of Agriculture under George W. Bush) told Jackson “There’s a fear in the country” that the Obama administration “walked in and every idea for more regulation was dusted off. … I hear you say you’ve been out there addressing farmers with (Agriculture) Secretary Vilsack. I say to you: it’s one thing to listen, another thing to hear. It seems like you pay lip service and then go on.”

Johanns was especially exercised about the EPA’s seeming selective adherence to laws and guidelines. As an example, he said a group of senators wrote Jackson a letter which cited the following from the Clean Air Act: “the administrator shall conduct continual evaluation of potential loss or shifts of employment which may result from the administration or enforcement … in applicable implementation plans including, where appropriate, investigating threatened plant closures or reductions of employment allegedly resulting from such administration or enforcement.”

In their letter, the senators asked if the EPA was following that particular law.

Jackson’s response to the letter, said Johanns, was unsatisfactory. The administrator’s missive consisted of several things “that jumped right out at me. From your letter, ‘EPA has not interpreted Section 321 to require EPA to conduct formal investigations in taking regulatory actions. EPA has not conducted a Section 321 investigation of its greenhouse gas actions. We are not undertaking a Section 321 analysis…’”

Asked Johanns: How does Congress “get clearer with you? ‘Shall’ seems quite obvious to me. We debate these laws, battle each other … and finally get a law passed and it’s like nobody is paying attention. You’re just out there kind of doing your thing – whatever your thing of the day is.

“This is the point I want to make to you: You’re hammering the little guy. The big guy who can get capital and loans and access those will somehow find a way to deal with what EPA is requiring even though it’s enormously onerous.

“Even when you exempt, or re-exempt, the small operator, they still feel the ripple effects of what you’re doing. (EPA actions) are just causing agriculture to consolidate more and more and more at a time, when, quite honestly, that’s the last thing we need.

“So, when you have such a clear direction from Congress – as you got in Section 321 – how could you possibly reach a conclusion that an employment analysis doesn’t need to be done on something so important, fundamental, so job-impacting as what you’re doing in this are? How can you ignore that?”

Jackson did not answer Johanns directly. But she did acknowledge the EPA has a poor image among farmers and ranchers, that many believe the agency “somehow has it in for the agriculture sector. My assurance is there’s nothing of the kind. I have no personal agenda. I believe we can’t be a strong country without a strong agricultural sector, that we cannot be prosperous if we can’t feed ourselves.

“From an environmental perspective, importing food – and the huge carbon footprint that (would result) – is much less preferable than to get (homegrown) food…

“Any belief that there’s an agenda that somehow targets (the agricultural) sector would be the furthest thing from who I am.”

Due to allegations she’s seen, Jackson checked and found that the year before she became EPA administrator, the agency “put out around 125 regulations. Last year, we did 94. There has been no huge blow up in the number of regulations.”

However, there is “a huge regulatory backlog, much of it driven by court cases which compel the EPA to follow the law.”

With respect to economic analyses of EPA rulemaking, “none of those 94 regulations … specifically exempts agriculture and small businesses from having to face any greenhouse gas regulation until, at least, 2016. It’s my firm hope that, by then, there will be legislation to govern those issues. It was an attempt to give further assurance to those sectors that they are not where we’re looking for greenhouse gas reductions.”